ABSTRACT

This work discussed the fundamental criteria for the patentability of inventions and for the protection of new plant varieties to the extent that they are based on the exploitation of community assets, which are defined in this work as PGRs and associated TK, innovations and practices of local communities. IP regimes work to provide IP-holders with legal rights over the outputs of their inventive undertakings, the products of their creative minds. In this respect, and provided inventors fully complied with the relevant basic and fundamantal criteria, patents and PBRs granted to them can be viewed as working the way they are supposed to, that is, to protect scientifically proven inventions that comply with the fundamental criteria for patents and PBRs. Any other thing such as the TK and practices of local communities and the plant materials to which such knowledge is associated, as they are less likely to be grounded on modern scientific methodologies and approaches, will fail the patentability and PBRs criteria, and thus will not be legally protected. Patents and PBRs do not work for community assets and community rights over their assets. On their part, local and indigenous communities hold culturally rooted customary rights over their assets, which they use and manage according to their traditional systems. In line with their traditional systems of use and management, local and indigenous communities demand rightful control over access to and use of their assets by others. However, unlike IPRs such as patents and PBRs which can limit access to the protected subject matters, community rights over traditional assets are exercised in a flexible manner and do not fundamentally prevent non-community members to access and use community assets. These two rights systems are thus fundamentally different. Based on this difference, community-rights holders and actors sympathetic to community concerns understandably complain about issues such as bio-piracy and disrespect to critical elements of community rights by scientific and commercial actors, including but not limited to such elements as the rights of PIC, benefit sharing and participation in decision-making. The IP-based and human-rights-oriented regulatory approaches described and

discussed in this book are meant to bring about harmony and understanding between the two systems of rights. Their adoption and implementation by developing countries rich in biological and cultural diversity will help local communities and national actors understand what IPR systems are all about, especially

when applied to nationally and legally protected community assets. This book proposes approaches that contemplate the setting up of platforms of discussions and consultations among various stakeholders involved in access operations at the national level, making it possible to improve understanding and establish trust. Their adoption and implementation at the national level will also empower local communities to pursue legal challenges against stakeholders who trespass upon their legally recognized rights. Moreover, despite the many difficulties that are likely to be faced in an attempt to pursue the international enforceability of the proposed regulatory mechanisms, possible routes for their wider applicability are suggested. While the development and eventual implementation of the suggested regulatory mechanisms are obviously not easy in practice, this study finds that they are not completely impossible and can be taken up by countries at the very least at the national level.